Citation Nr: 1702768
Decision Date: 02/01/17 Archive Date: 02/15/17
DOCKET NO. 05-29 799 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a right leg disability as secondary to service-connected degenerative disc disease of the lumbar spine (the back).
2. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine (back).
3. Entitlement to a total disability due to individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Fritzie M. Vammen, Attorney
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. M. Schaefer, Counsel
INTRODUCTION
The Veteran served on active duty from January 1969 to December 1972. He is the recipient of the Combat Action Ribbon and the Purple Heart.
This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.
In May 2006, the Veteran testified via video-conference at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
In April 2007 the Board issued a decision adjudicating the appealed issues. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court).
In September 2008 the Court granted a joint motion of the Veteran and the Secretary of Veterans' Affairs (the Parties) vacating the April 2007 decision and remanding the matter to the Board for compliance with the instructions in the joint motion.
In the joint motion the Parties agreed that VA must obtain records of the Veterans' claim for disability benefits from the Social Security Administration (SSA). The Parties also agreed that examinations of record were inadequate for rating the Veteran's disabilities on appeal.
To address this, the Board remanded the case to the RO in January 2010 for further development. There has been compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
The appeal was adjudicated in the merits in a September 2015 decision. However, the Veteran's attorney had only been in possession of a copy of the claims file for approximately two weeks at that time. Therefore, the September 2015 decision was vacated in December 2015 to allow the Veteran and his attorney adequate time to prepare any arguments on the matters at issue.
Again, in April 2016, the attorney requested additional time to submit VA treatment notes, and in September 2016, he provided additional arguments on the case. With the arguments, the attorney submitted private treatment notes that addressed the Veteran's employability and left lower extremity, but also evaluated the severity of the Veteran's back disability. The Veteran did not waive agency of original jurisdiction review of the evidence. See 38 C.F.R. § 20.1304 (2016). However, to the extent the findings are pertinent to the back and right lower extremity, they are duplicative of the evidence already of record. Consequently, the Board finds that no prejudice to the Veteran results from the Board's review of this evidence in the first instance.
In the September 2016 submission, the Veteran's attorney argues that an earlier effective date for the grant of entitlement to service connection for radiculopathy of the right lower extremity is warranted. The attorney also indicates that a claim of entitlement to service connection for a left knee disability has been raised. The attorney asserts that the Board should take jurisdiction over these claims, but as they have not been addressed by the RO, they are not properly before the Board at this time. Accordingly, these issues are REFERRED to the RO for appropriate action.
The issues of entitlement to an increased rating for degenerative disc disease of the lumbar spine and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The RO granted service connection for mild radiculopathy of the right lower extremity, associated with degenerative disc disease of the lumbar spine in an April 2014 rating decision.
2. The Veteran's degenerative disc disease of the lumbar spine has never resulted in ankylosis or any incapacitating episodes or in more than mild incomplete paralysis of the right lower extremity.
CONCLUSIONS OF LAW
1. The Board does not have jurisdiction over a claim of entitlement to service connection for a right leg disorder secondary to degenerative disc disease of the lumbar spine. 38 U.S.C.A. § 7104(a) (West 2014).
2. The criteria for a higher rating or ratings for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5243, 4.124a, Diagnostic Code 8520 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Right Lower Extremity
In an April 2014 rating decision, the RO granted service connection for mild radiculopathy of the right lower extremity, associated with degenerative disc disease of the lumbar spine. The RO assigned an effective date in April 2012 and an initial 10 percent disability rating under the criteria for rating incomplete paralysis of the sciatic nerve. This was a full grant of the benefit sought (service connection). There is no indication that the Veteran suffers a right leg disability other than the disability now service-connected.
Statute provides that the Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans. 38 U.S.C.A. § 511(a). All questions in a matter which under § 511(a) is subject to decision by the Secretary shall be subject to one review on appeal by the Secretary. 38 U.S.C.A. § 7104(a). Final decisions on such appeals shall be made by the Board. Id.
As service connection has been granted for radiculopathy of the right lower extremity there remain no questions of fact or law to be decided, and the Board does not have jurisdiction over that issue. Therefore, the appeal of the issue of entitlement to service connection for a right leg disorder, secondary to service-connected degenerative disc disease of the lumbar spine is dismissed.
II. Lumbar Spine Rating
In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.
Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.
Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Once the maximum rating for limitation of motion for the given joint is reached, § 4.40 and § 4.45 do not provide for a higher rating due to pain. Johnston, 10 Vet. App. at 85. In the instant case, 40 percent is the maximum rating for limitation of motion.
Disabilities of the spine are rated under the under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Intervertebral disc syndrome can, alternatively, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, also found at § 4.71a. The Veteran's degenerative disc disease of the lumbar spine is rated under the General Formula, Diagnostic Code 5243, for intervertebral disc syndrome.
The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. As pertains to the thoracolumbar spine, the General Formula provides that a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.
Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5).
Raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1).
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the cervical spine is 340 degrees, and the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2).
Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a. A 60 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id.
Note (1) states that for purposes of evaluations of intervertebral disc syndrome, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id.
As noted, the Veteran's radiculopathy of the right leg is rated under the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Those criteria provide that an 80 percent rating is assigned where there is complete paralysis of the sciatic nerve, where the foot dangles or drops, where there is no active movement possible of muscles below the knee, or where flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). Severe paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent disabling. Id. Moderately severe, moderate, and mild incomplete paralysis of the sciatic nerve are rated as 40, 20, and 10 percent disabling, respectively. Id. The Board finds no other applicable schedular criteria for rating this aspect of the Veteran's lumbar spine disability.
The term "incomplete paralysis" indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See Note under "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id.
Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R.
§ 4.6.
Service connection was established for residuals of lumbosacral strain with degenerative changes in a January 2001 rating decision, and a 20 percent initial disability rating was assigned, effective in February 2000. In an August 2002 Decision Review Officer Decision, the description of the disability was changed to degenerative disc disease, lumbar spine and the rating was increased to 40 percent, effective October 31, 2001.
In June 2004, VA received the Veteran's claim of entitlement to an increased rating for his service-connected degenerative disc disease of the lumbar spine. VA afforded the Veteran an examination of his thoracolumbar spine in August 2004, and also in April 2012, pursuant to the January 2012 remand.
The August 2004 examiner documented the Veteran's reports of constant back pain and noted that he had had no incapacitating episodes in the last year. Range of motion measurements revealed no ankylosis and active range of motion in all directions. Flexion was to 75 degrees, extension to 20 degrees, and lateral flexion to 25 degrees on the right and 30 degrees on the left. Straight leg raising tests were negative, and reflexes were 2 plus and equal at the knees and 1 plus and equal at the ankles. Strength was 5 plus out of 5 plus throughout. Sensory examination was normal in the distal lower extremity. There was some loss of pinprick sensation in the anterior and lateral aspect of the right thigh and at the lateral aspect of the left thigh.
The April 2012 VA examiner documented the Veteran's subjective complaints of chronic back pain preventing him from running and causing limited walking ability. The Veteran denied flare-ups. Range of motion measurements revealed active range of motion of the spine in all directions, and therefore, no ankylosis. Flexion was to 50 degrees with pain beginning at 30 degrees. Extension was to 5 degrees, bilateral flexion was to 10 degrees, and bilateral rotation was to 15 degrees. For each of these movements, pain began at the end of the motion
Range of motion was unchanged after repetition. The examiner indicated that the Veteran had weakened movement, excess fatigability, disturbance of locomotion, interference with sitting, standing and/or weight bearing, and pain on movement. Also noted was that he had an inability to use stairs and to engage in sports.
The Veteran was found to have normal strength in the lower extremities for all motions that were tested. Reflexes at the knee were absent, and reflexes at the right ankle were normal but hypoactive at the left ankle. Sensory examination was normal for the left lower extremity, but decreased for the right knee and upper thigh. The examiner indicated that the Veteran had radiculopathy symptoms only in the right lower extremity and described the manifestations as mild. There were no other neurological abnormalities, and the examiner documented that the Veteran had not had any incapacitating episodes in the previous twelve months.
The examiner noted that the Veteran had constant use of a cane, but no other assistive device. Imaging studies revealed arthritis.
These examination reports are evidence against assigning a higher rating for the Veteran's degenerative disc disease of the lumbar spine. The treatment notes of record do not document manifestations that suggest a disability of greater severity than found at these examinations. Thus, the evidence is against findings that the Veteran has experienced either incapacitating episodes or ankylosis.
The right lower extremity disability is described as mild and no more severe. Although there were neurological findings with regard to his left lower extremity, the preponderance of the evidence does not establish that the Veteran has a neurological abnormality of the left lower extremity associated with his lumbar spine disability.
The Veteran does have a diagnosis of arthritis of the spine, and arthritis may be rated under Diagnostic Code 5003. However, such a rating is only assignable if the limitation of motion is not compensated under the limitation of motion codes. In this case, the Veteran's limitation of motion is the basis for the rating already assigned. Consequently, a separate rating for arthritis of the lumbar spine is prohibited. 38 C.F.R. § 4.71a, Diagnostic Code 5003 or 5010.
The Board has contemplated the Veteran's subjective complaints of pain, and indeed, his subjective reports of symptoms are, in part, the basis for the 40 percent rating assigned for his back disability and the 10 percent assigned for the associated right lower extremity radiculopathy. However, the presence of pain alone does not equate ankylosis or incapacitation or signify neurological symptoms that are more than mild. Therefore the appeal as to the schedular evaluation of the Veteran's spine disability, to include both orthopedic and neurological manifestations, must be denied.
It is again important to understand that without taking into consideration the Veteran's statement, the current evaluation could not be found.
The Veteran has raised, and the Board has considered, referral for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2016).
For an extra-schedular rating to be warranted, the disability must present an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
Extra-schedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. Id.
If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id.
All symptoms and the level of disability resulting from the Veteran's degenerative disc disease of the lumbar spine are addressed by criteria found in the rating schedule. He reports neurological symptoms of the right leg and pain of his lower back. The criteria for rating neurological disabilities found at 38 C.F.R. § 4.124(a) and for rating disabilities of the spine, found at 38 C.F.R. § 4.71a, taken together with 38 C.F.R. § 4.40 and § 4.45, address all of his symptoms. His use of a cane is not a symptom, but rather a means of dealing with his symptoms and does not make his disability picture an unusual or extraordinary one. The regular schedular criteria also allow for higher ratings for greater disability, which the Veteran does not have, e.g., complete paralysis of the sciatic nerve and ankylosis of the thoracolumbar spine. Therefore, the first prong of the Thun test is not satisfied and referral for extra-schedular consideration is not warranted.
Also considered by the Board is whether the collective effect of his other service-connected disability warrants referral for extra-schedular consideration. See Johnson v. Shinseki, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran has service-connected disabilities of PTSD, diabetes mellitus, and residual scar of the right buttock. The evidence does not show that these disabilities act together with his back disability to produce a collective effect that makes his disability picture an unusual or exceptional one. Rather the record shows that he is compensated appropriately for all of his service-connected disabilities. For these reasons, the Board declines to remand this case for referral for extra-schedular consideration.
III. Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
The record reflects that all available pertinent treatment records have been obtained, to include service treatment records and available post-service VA treatment records. In the April 2016 submission, the attorney indicated that there were VA records he was going to obtain, but when providing arguments in September 2016, he neither submitted these records nor indicated that any such records were available and remained outstanding. Records from SSA related to the Veteran's SSA disability benefits are also associated with the claims file. Moreover, the Veteran has been provided the appropriate VA examination.
The Veteran has not identified any other outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim.
ORDER
The appeal of the issue of entitlement to service connection for a right leg disorder, secondary to service-connected degenerative disc disease of the lumbar spine is dismissed.
Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine is denied.
REMAND
Regrettably, the appeal of the issue of entitlement to TDIU must be remanded. As indicated in the Introduction, the Veteran has raised a claim of entitlement to service connection for a left knee disability, to include as secondary to his service-connected back disability. As the Veteran's TDIU claim is in part dependent on that nature of, and rating for, his service-connected disabilities, it must be remanded to allow for adjudication of the left knee claim before TDIU is further considered. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009).
Moreover, in September 2016, the Veteran's attorney provided a vocational assessment, that has not been considered by the RO. Further, the most recent examination that assessed the impact of service-connected disability on the Veteran's employability was in 2013 and did not assess the impact of the service-connected disabilities together on the Veteran's employability. Therefore, the Board determines that the Veteran should be afforded a VA examination to evaluate the impact of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment.
Accordingly, the case is REMANDED for the following action:
1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.
2. Adjudicate the issue of entitlement to service connection for left knee disability, to include as secondary to the service-connected lumbar spine disability.
3. Schedule the Veteran for a VA examination to assess the functional effects of his service-connected disabilities on his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience.
Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner is asked to discuss the functional effects that the Veteran's service-connected disabilities, alone or in combination, have on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The examiner must not consider the Veteran's age or any nonservice-connected disabilities.
4. The RO or the AMC should also undertake any other development it determines to be warranted.
5. Then, the RO or the AMC should readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his attorney, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).
Department of Veterans Affairs